On April 12, 2024, D.C. Federal Judge Randolf Moss rejected a proposal by the State of Florida and the business community to allow the State to continue to process Clean Water Act 404 permits that do not impact Endangered Species Act (ESA) listed species. Judge Moss took this action despite his February 15, 2024 ruling vacating EPA’s approval of the State’s assumption of that program. That ruling held that the State’s reliance on programmatic ESA consultation violated ESA procedures.
In rejecting the State’s proposal to modify his February decision, the Court held that adopting the State’s proposal would create major confusion in 404 permit processing and would not provide the ESA section 7 incidental take protections that normally apply to Corps 404 permits following consultation with the U.S. Fish & Wildlife Service.
Judge Moss’ April 12 decision relied on evidence from the federal government that the Corps would be able to handle the anticipated surge of permits following retransfer noting that “there are more people in the Jacksonville District today than there were before the State assumption” of the program in 2020. He then noted that projects under State review “would not go the back of the line” because he believed “the Corps will, as much as possible, pick up where Florida left off. … [because] the information submitted to Florida satisfies the Corps requirements.”
Judge Moss also stressed the benefits of Corps review in providing ESA Section 7 incidental take protection, which would not be available under the State’s proposed alternative procedures. He noted the greater ESA risk in Florida, with 130 ESA listed species, than in New Jersey and Michigan, the other states that have assumed the program.
The State and the business community will likely appeal this decision.
The ruling’s disruptive impact
Critics of Judge Moss’ ruling will argue it does not reflect real word impacts of retransferring the permit review back to the Corps. Many projects covering a broad range of vital activities including housing, infrastructure and mining, have been moving through the State review process since assumption was approved. Applicants have been relying on the State procedures and relationships with State regulators in all phases of the permit process. It’s certainly true that business decisions and investments had depended on the stability of the approved delegated program.
The inevitable consequences of this ongoing dispute may well be more disruption, though the extent remains to be seen. The Florida regulated community will be watching developments closely.
Larry Liebesman, Esq.
Senior Advisor
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).